[2013] KEHC 6882 (KLR)
The court found that the trial magistrate did not err in law or fact and that the conviction was safe. The sentence of 10 years was not inordinately high given the statutory minimum and the aggravating circumstances, but considering the appellant's remorse, first offender status, and mitigation, the court exercised...
Source-derived case information.
- Citation
- [2013] KEHC 6882 (KLR)
- Parties
- Appellant: Peter Njoroge Mburu; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Murang'a
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 377 of 2013
- Procedural Posture
- Criminal Appeal / Judgment on Appeal Against Sentence
- Outcome
- Sentence reduced on appeal.
- Judges
- AN Makau
- Legal Topics
- Sentencing Principles, Sexual Offences, Mitigation, Appeals Against Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Njoroge Mburu
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment on Appeal Against Sentence
Legal Issues
- 1 Whether the sentence of 10 years imprisonment for attempted rape under Section 4 of the Sexual Offences Act was excessive in the circumstances.
- 2 Whether the trial magistrate erred in law or fact in imposing the sentence.
Ratio Decidendi
The court found that the trial magistrate did not err in law or fact and that the conviction was safe. The sentence of 10 years was not inordinately high given the statutory minimum and the aggravating circumstances, but considering the appellant's remorse, first offender status, and mitigation, the court exercised its discretion to reduce the sentence to 7 years from the date of first conviction.
Court Disposition
Sentence reduced on appeal.
Orders
- The sentence of 10 years imprisonment is set aside and substituted with a sentence of 7 years imprisonment from the date of first conviction.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MURANGA
HIGH COURT CRIMINAL APPEAL NO. 377 OF 2013
(Appeal from the Original Conviction and Sentence in Criminal Case No. 3562 of 2010 dated 13thDecember 2011 in the Chief Magistrate’s Court at Thika by Hon. B. J. Ndeda - PM)
PETER NJOROGE MBURU…………………………….…..APPELLANT
VERSUS
REPUBLIC…………………………………………………..RESPONDENT
JUDGEMENT
The Appellant herein Peter Njoroge Mburu was convicted by the trial Magistrate for the offence of defilement contrary to Section 4 of the Sexual Offences Act, No. 3 of 2006. He was sentenced upon conviction on the main count and sentenced to serve 10 years imprisonment. He appeals against the sentence.
The Appellant seeks a reduction of the sentence and frames the Grounds of Appeal as follows:-
That I persuade this Honourable Court to consider ordering the sentence of 10 years imposed to be served under probative terms.
That may this Honourable Court extend clemency upon me and consider reducing the sentence imposed.
That may this Court consider my mitigation in the Court below and extend clemency on humanitarian grounds taking into account that I am a first offender and remorseful for whatever transpired.
Mr. Okeyo for the State said that the offence was attempted rape contrary to Section 4 of Sexual Offences Act 2006. The subject was the grandmother. He stated that under Section 4, the statutory minimum is 5 years but can be enhanced to life considering the circumstances.
Being an Appeal against sentence, I have to consider the position of the State. Mr. Okeyo submitted that under the Act, the minimum sentence is 5 years but it can be enhanced to life depending on circumstances. In the case before the trial Magistrate, the Appellant had made an attempt to rape her but that was thwarted by the victim, an elderly woman. She knew him and his parents were summoned by the family he was handed over to the police. Upon conviction he was sentenced to a 10 year custodial sentence for the attempt.
Having, at this stage of the appellate process, evaluated and analysed the facts of the case and the verdict of the learned trial Magistrate I find that the said Magistrate did not err either on the law or facts. The conviction was safe and even the Appellant has not challenged it.The sentence was not inordinately high since the Appellant could easily have been sentenced to life imprisonment. He only went as far as touching her and trying to lift her skirt all the while telling her he wanted to sleep on her bed.He pleads for clemency and seems rather remorseful for the action. He was stated to have been under the influence of alcohol. In the present case, I exercise my discretion and disturb the sentence and reduce it to 7 years from date of first conviction.
Dated, signed and delivered at Muranga this 28th day of November 2013
Nzioki wa Makau
JUDGE